JDI IN THE NEWS - 2006

Brendan Smith: For prisoners, a separate kind of punishment, Legal Times, December 18, 2006.

 
Tony, an armed robber serving 20 years to life, knew what could happen to snitches, but he says federal prison officials in Atlanta delivered an ultimatum: Wear a wire for the FBI in a sexual-abuse investigation against a corrections officer, or his time behind bars would become "a living hell."

Tony agreed to wear the wire, but he ended up in hell anyway.

In letters to the D.C. Prisoners' Project, Tony says he has been threatened, beaten, and sexually assaulted by other inmates and corrections officers in federal prison for cooperating with the FBI investigation, which targeted an officer who allegedly sexually abused Tony at least eight times over a two-year period at the U.S. penitentiary in Atlanta.

The FBI investigation unraveled in 2004 with no charges being filed, and Tony has since bounced through federal prisons across the country, spending most of his time in protective custody units locked in a cell for up to 23 hours a day.

The treatment feels more like punishment than protection for Tony, a 46-year-old former Washington, D.C., resident who was sentenced in 1996 for robbing $576 from a Giant grocery store in his fourth armed robbery case. He is not eligible for parole until 2015. (Legal Times has decided not to publish Tony's real name.)

"I don't know what to do. All I do know I am waiting to be killed and not a damn thing I can do about it," Tony wrote to staff attorney Deborah Golden at the D.C. Prisoners' Project. "You is all I have to turn to. My life is in your hands."

Tony's cross-country odyssey illustrates one of the many difficulties in investigating and prosecuting prison rape, where victims who speak out often suffer retaliation for breaking the prison culture's strictly enforced code of silence. The unbending rule against snitches, possibly the lowest form of life in prison next to child molesters, applies to both inmates and corrections officers.

"A snitch is a snitch. A guy who will wear a wire is a guy who will wear a wire, and as a prisoner you don't want him near you," says Golden, who has been struggling to get Tony transferred to a medium-security facility or placed in a prison witness protection program.
MORE THAN ONE MILLION RAPED

Even though prison rape is considered torture under international treaties, many Americans view rape in prison as a don't-drop-the-soap joke or as retribution for criminals who deserve whatever they get behind bars. "It's real easy to write people off who are incarcerated as less than human," Golden says.

However, the political and legal response to prison rape has been changing ahead of the curve of public opinion. Established by Congress in 2003, the National Prison Rape Elimination Commission is hearing testimony from rape survivors and corrections experts in an ambitious, unprecedented effort to develop the first national standards to deter prison rape.

The U.S. attorney general will create the national standards after the commission submits its recommendations, which are expected late next year or early in 2008. Once adopted, the standards will apply to every corrections facility in the country, from the smallest county lockup to the largest prison.

The U.S. Bureau of Prisons (BOP), which runs the federal prison system, will be required to comply with the standards, while a carrot-and-stick approach will be used with state and local governments. Those that comply will be eligible for federal block grants to improve jail or prison conditions, while holdouts could lose 5 percent of their federal corrections funding and face increased liability in lawsuits from inmates for violating their Eighth Amendment protections from cruel and unusual punishment.

Concealed behind concrete walls and rolls of razor wire, the number of women, men and juveniles who suffer sexual assault is staggering. The National Prison Rape Elimination Act of 2003 cites conservative estimates that at least 13 percent of the more than 2 million people incarcerated in the United States have been sexually assaulted.

"The total number of inmates who have been sexually assaulted in the past 20 years likely exceeds 1 million," the act states.

In a report this year to the U.N. Committee Against Torture, the Los Angeles-based nonprofit Stop Prisoner Rape called prison rape "arguably the most widespread and neglected form of human-rights abuse in the U.S. today."

After their release, inmates carry the physical and emotional scars of sexual assault back into society, increasing recidivism and contributing to the spread of HIV and other sexually transmitted diseases, says Judge Reggie Walton of the U.S. District Court for the District of Columbia, who chairs the National Prison Rape Elimination Commission.
"When I indicated to people that I was doing this work, people said, 'Why should you care?"' says Walton, a conservative judge known for his tough sentences. "Part of the punishment that is meted out by the court is not this type of brutality."
BUREAUCRACY BEHIND BARS

Golden has spent more than 18 months trying to navigate the BOP bureaucracy to help Tony. It has been a frustrating endeavor that hasn't produced results. Meanwhile, Tony continues to pinball through maximum-security prisons, trying to stay one step ahead of his reputation as a snitch. More than 6,600 D.C. inmates are housed in BOP facilities across the country.

"The Bureau of Prisons is very large and growing by the day, but it is very small when it comes to rumors," Golden says. "Information is one of the only sources of power."
In the pressure-cooker environment of prison, sex can be a commodity or a weapon. Rape is a tool used by both inmates and corrections officers to exert power, deliver punishment, or obtain sexual gratification.

Tony's case illustrates the difficulty in proving sexual-abuse allegations in prison, where corrections officers control almost every aspect of inmates' lives. Golden says Tony, who is gay, felt coerced or exploited into having sex at least eight times with the Atlanta corrections officer, who bribed Tony with smuggled contraband, including a cell phone, tennis shoes, and a radio.

Internal-affairs officers learned about the sexual relationship and told Tony he would be transferred to a medium-security facility if he wore a wire in February 2004, but they reneged on the deal when Tony couldn't get the officer to confess to the sexual acts on tape, Golden says.

The officer no longer works for the BOP, but a BOP spokeswoman would not say if he resigned or was fired. The officer was never charged.

Under federal law, consent is not a defense for BOP officers who have sex with inmates. Because of the level of control officers exert over inmates, officers often can coerce inmates into having sex without threats or violence. Such an act is a federal crime that was increased from a misdemeanor to a felony this year.

Tony says he has suffered further threats and attacks from fellow D.C. inmates and corrections officers while he has been transferred to prisons in Alabama, Louisiana, Florida, Colorado, California, Georgia and Kentucky.

J.L. Norwood, warden of the U.S. penitentiary at Victorville, Calif., stated in a July 14 memo that Tony's central file contains documentation supporting his claims about the sexual-abuse investigation in Atlanta. In response to a complaint from Tony, Norwood stated a request would be made for "a lesser security transfer to a facility more commensurate with your custody and security needs."

That transfer to protect Tony never happened. Instead, Tony was sent last month to the Big Sandy maximum-security penitentiary in Inez, Ky., where two D.C. inmates have been killed in assaults over the past two months, triggering a lockdown of the entire facility that was lifted last week. A prison spokeswoman said last week that Tony had declined an interview request from Legal Times.

BOP spokeswoman Felicia Ponce says an inmate's central file is not public, and she would not comment on Tony's case. She says BOP officers receive initial and ongoing annual training on sexual-abuse reporting procedures, and all sexual-abuse allegations are taken seriously and are investigated either internally or by external law-enforcement agencies.

Golden has filed a Freedom of Information Act request to obtain Tony's central file and any details of the FBI investigation, but she has not yet received any records. Tony needs to be transferred to a medium-security facility or to a state prison or placed in a BOP witness protection program, Golden says. If the BOP keeps refusing those options, Golden plans to file a preliminary injunction request in U.S. District Court for the District of Columbia.

"It's frustrating, but I've gotten used to it," Golden says about the unresponsiveness of the BOP bureaucracy. "It's their standard operating procedure."

Current standards vary on how state and federal prisons handle rape allegations, and policies that sound great on paper may bear little resemblance to the reality faced by rape victims.

"There's no place to take these complaints," says Brenda Smith, an American University law professor and commissioner on the National Prison Rape Elimination Commission. "It's more the exception than the rule that they are dealt with expeditiously, confidentially, and that discipline occurs."

Inmate overcrowding, poor training and supervision of corrections officers, shoddy sexual-abuse investigations, and a persistent failure to prosecute rapists all contribute to sexual assaults, says Smith, who has devised sexual-abuse training for corrections officers.

Prisons and jails also must improve classification systems for identifying inmates who are likely to be rapists or victims, Smith says.

Rape victims often are nonviolent first-time offenders or may be young, small, weak, mentally ill, gay, or transgendered.

Under its mandate from Congress, the commission cannot propose national standards that would impose substantial additional costs on corrections facilities. Some endemic problems, such as overcrowding or poor prison design, may not be addressed by the commission because of the funding restriction, Walton says.

Prosecution of prison rape has been a low priority for state and federal prosecutors faced with limited resources and no public outcry for action, Walton says.

From fiscal years 2000 to 2004, the Justice Department's Office of the Inspector General (OIG) investigated 351 BOP staffers who allegedly sexually abused inmates. OIG presented 163 cases for prosecution, but federal prosecutors tossed more than half of the cases because of a lack of physical evidence, the charges were only misdemeanors, or the cases "lacked jury appeal," according to an OIG report.

Sometimes the cases trigger bloodshed, including a June 21 shootout among federal officers at the federal prison in Tallahassee, Fla. BOP corrections officer Ralph Hill opened fire on federal agents who came to the prison to arrest him and five other corrections officers indicted on charges of trading smuggled contraband for sex with female inmates. OIG Special Agent William Sentner was mortally wounded but was able to return fire and kill Hill.
'A LITTLE BIT OF JUSTICE'

Sometimes cases of prison rape end with unintended life sentences for the victims, like Keith DeBlasio.

DeBlasio, who was sentenced to five years for bank embezzlement in Maryland in 1994, says officers at the federal prison in Milan, Mich., ignored his pleas that he felt threatened by his new bunkmate, a Vice Lords gang leader who was fashioning homemade knives or "shanks" in the prison's furniture factory.

"The institution was corrupt," DeBlasio tells Legal Times. "There were that many corrupt staff, especially higher up, that there was no true protection."

DeBlasio, who testified before the National Prison Rape Elimination Commission last year, says his cellmate repeatedly raped him for more than a month in 1996. The first time, the man pushed DeBlasio down on his bunk while other gang members armed with shanks stood watch for officers.

DeBlasio says he repressed the choking tendrils of fear and anger during the day, but the rage seeped out in his dreams.

"I remember laying there and thinking how easy it would be to shank him through the mattress," he says. "I'm not a violent person. To have dreams about that disturbed me."
DeBlasio soon fell ill following the repeated attacks. He was weak and couldn't get out of bed, and mysterious sores appeared on his scalp. DeBlasio says friends and family had to repeatedly petition the BOP before he could get an HIV test, which was positive.

"People talk about scars from sexual assault," DeBlasio says. "You don't overcome a lot of that completely, but HIV is there. It's not going away at all. There isn't any hope of overcoming that part."

DeBlasio, 39, now lives in West Virginia and survives on Social Security disability payments, another hidden cost of prison rape. Although his cellmate eventually was prosecuted for the rapes of DeBlasio and another inmate, DeBlasio says he felt more relief from his testimony before the commission.

"It was really one of the biggest turning points for me. I felt like I was being vindicated," he says. "It really made me feel like I finally was getting a little bit of justice."